Dutch Courts Join Pirate Bay Blocking Bandwagon

Last week, at the urging of the Dutch anti-piracy group BREIN, the Court of The Hague ordered two ISPs to block subscriber access to The Pirate Bay. This is the second major attempt by BREIN to cut off users' access to The Pirate Bay in the Netherlands. The first, a 2010 court ruling directly against the popular torrent site, was all but ignored by its founders.

The two ISPs — Ziggo, the largest cable operator in the Netherlands, and XS4ALL, known for its vocal free-speech advocacy — have until February 1 to block access to a list of URLs and IP addresses specified in the court order.

This order echoes recent and alarming decisions in other European jurisdictions. In December we covered allegations that some Belgian ISPs were voluntarily complying with a request from the Belgian Anti-Piracy Federation to block their customers' access to the Pirate Bay. And earlier this month, the Finnish ISP Elisa announced that it will temporarily comply with an October court ruling to block The Pirate Bay until a higher court delivers the decision in their appeal.

These actions seem to stand in stark contrast with the European Court of Justice ruling last November in the landmark Scarlet v. SABAM case. That court, basing its decision on the Charter of Fundamental Rights, ruled that a system that blocks certain DNS or IP addresses indefinitely and for all customers as a preventative measure breaches ISPs’ freedom to conduct business and users’ fundamental privacy, freedom of information, and freedom of communication rights.

Ziggo and XS4ALL each announced plans to appeal the decision, which is even more troubling and far-reaching than some of the earlier court orders. One startling component is the expansiveness of the blacklist imposed by BREIN and the Court. Not only does the block apply to three IP addresses and 24 separate DNS addresses, but according to a spokesperson for XS4ALL Niels Huijbregts, the Court granted BREIN the authority to add additional domain names and IPs to the list in case The Pirate Bay changes servers or locations.

Given that BREIN is a private organization, similar to the MPAA and the RIAA in the United States, those powers represent a chilling weapon against free expression in the hands of a group that has demonstrated itself to be more concerned with protecting corporate profits than digital rights.

The Dutch court order is emblematic of an arms race playing out all over the world to address unauthorized copyright infringement over international borders. One especially prominent skirmish in the past few weeks has been the American content industry’s floundering push for the Stop Online Piracy Act (SOPA) and the PROTECT IP Act (PIPA), both of which are said to target “rogue foreign websites.” Last week’s activism against the domestic legislation spilled over the U.S. borders to countries affected by similar laws, like Ley Sinde in Spain or the French HADOPI.

These laws and court cases are especially problematic when arguments against copyright infringement appear to trump freedom of expression claims. Although countries like Switzerland have determined peer-to-peer file-sharing does not cause significant economic harm, other countries’ governments are willing to take content groups’ claims at face value and create new restrictions around them. Unfortunately, when aimed at copyright infringement, these restrictions form the basis of censorship, as we’ve documented in our Global Chokepoints project.

Instead of inviting censorship and undermining digital rights to fight piracy, legal authorities around the world should recognize that “piracy” is a business problem that can only be solved with a business solution — not through lopsided policies designed to protect legacy media profits.

The story is far from over, as each side has promised to escalate the case. BREIN has promised to bring similar action to other ISPs, but that could be slowed by the appeals that Ziggo and XS4ALL are filing. We encourage the Dutch courts to follow the European Court of Justice, and acknowledge that the content group requests are out of line with fundamental rights online.

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